Effective July 7,2017, employers in West Virginia will have significantly expanded rights to implement mandatory drug testing policies for applicants and employees. Under current law, West Virginia employers are not permitted to require drug testing as a condition of hiring or of continued employment except under very limited circumstances.
Employers who decide to implement drug test must create a written policy and distribute the policy to all employees for which the policy applies (generally this is all employees). All job applicants must also have an opportunity to review the written policy.
The policy should outline the reasons a drug test may be administered. Testing can be done for “legitimate drug abuse prevention and/or treatment purposes such as investigating workplace accidents/injuries and maintaining safety and/or security. Employers do not need to limit testing to instances where there is evidence or suspicion that an individual may be under the influence of drugs or alcohol.
In order for an employer to take advantage of the benefits of the Safer Workplace Act, it is imperative that the employer’s policy include all of the requirements of the Act. Those requirements include:
- Drug testing will occur during the employee’s regular work hours (or immediately before or after the employee’s regular work hours but the employee must be paid for the time spent participating in the testing).
- If drug testing occurs offsite, the employer must provide transportation (or reimburse for the cost of transportation) for the employee(s) participating in the testing.
- The employer is required to pay for the drug testing.
- A positive test or refusal by the employee to participate in the test are considered valid reasons to take disciplinary action (such as refusal to hire, suspension, termination) or referral to a company provided rehabilitation program as a condition of continued employment.
It is advised that employers who have a drug free workplace program notify all employees in writing that they will be subject to termination and forfeiture of unemployment benefits and workers’ compensation benefits (if the employee has been injured) if the employee reports to work under the influence of drugs or alcohol OR if the employee refuses to participate in mandatory drug testing. The forfeiture of unemployment benefits and workers’ compensation benefits will only apply if the employer has already notified employees via their drug testing policy that the benefits would be forfeited.